The High Court ruled that there is no presumption in planning law in favour of repurposing and reusing buildings. In Marks and Spencer plc v Secretary of State for Levelling Up, Housing and Communities and others [2024] EWHC 452 (Admin), the court overturned the decision of the secretary of state to refuse plans for the demolition and rebuilding of M&S’s flagship Oxford Street store.
M&S submitted an application to Westminster City Council in 2021 for demolition of three buildings, including the 1929 art deco-style Orchard House, and the construction of a modern mixed-use development. The officers recommended approval, despite the heritage impacts, but in 2022 the secretary of state decided to call in the application. The SoS refused the application in 2023 on the grounds of heritage impacts and carbon impacts owing to the release of embodied carbon by demolition.
M&S challenged this decision on six grounds. The court agreed on the first five grounds and quashed the decision. Grounds one and five relate to the repurposing of buildings and embodied carbon.
Ground one provided that the SoS erred in respect of paragraph 152 of the National Planning Policy Framework when he said there is a “strong presumption in favour of repurposing and reusing buildings”. This presumption was raised by the inspector and taken from the London Plan guidance documents in place to assist in decisions as to whether a building should be retained.
These guidance documents were not part of the statutory development plan, but rather only supplementary planning documents. The court, however, did not have to analyse whether those documents could give rise to a strong presumption, because the SoS had not referred to those guidance documents and instead relied only on paragraph 152 of the NPPF.
The court considered that, while paragraph 152 of the NPPF encourages the reuse of buildings, there was “nothing [in paragraph 152] that comes close to a presumption”. Besides, following the examples from paragraphs 11 and 90, it was clear that where the NPPF wishes to create a presumption, that intention was made obvious in the wording. According to the court, this misidentification of the strong presumption “impacts upon the balance and structure of the [decision letter] as a whole”.
Ground five provided that the SoS made an error of fact in respect of the embodied carbon, and misapplied policy in respect of embodied carbon. The relevant policy was the London Plan’s policy SI 2 “Minimising greenhouse gas emissions”. The court concluded that the carbon offsetting requirements of this policy were clearly in relation to operational carbon only, not to embodied carbon.
The key for this interpretation of the policy was its reference to Building Regulations, as according to the court: “The reference to the Building Regulations necessarily includes a calculation based on the energy efficiency of the building in its operational phase, not the construction carbon impacts.” Therefore, the SoS had wrongly applied the carbon offsetting requirements of this policy to embodied carbon.
This ruling shows that, while the repurposing of buildings and embodied carbon are still material considerations, planning authorities must make sure that their application is backed up by the relevant policies.
Stefano D’Ambrosio is a solicitor in the planning and environmental team at Irwin Mitchell
